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A break on brakes?

And yet, in concert with several rental companies and boat trailer dealers, he was able to orchestrate a huge victory for trailer rental companies, dealers, manufacturers, and users in the state of Maryland.

A four-year tussle ended in May when Maryland passed a law defining the legal use of surge brakes. House Bill #551 passed the house and senate unanimously and was signed by Gov Robert Ehrlich, thus allowing surge brakes on trailers with a Gross Vehicle Weight Rating (GVWR) of 10,000 lb or less. A ratio of 1.50:1 (trailer to tow vehicle GVWR) is imbedded in the bill, preventing a small vehicle from towing a large trailer. The new law takes effect on October 1.

The Maryland Department of Transportation had banned all surge brakes, with the State Police primarily enforcing the ban only on commercial trailers. Not only were violators being fined in excess of $520, but the trailer was immediately impounded on the side of the road.

“I never dreamed we'd end up in a four-year battle,” says Doran, whose company is a member of the National Association of Trailer Manufacturers (NATM). “Eventually, we were able to get the state to focus on it and understand the difference between brakes. Most important to me was that we got them to understand that if they ban surge brakes, they were in many ways creating a bigger problem. The cure was worse than the symptoms. Once they realized that, things went a lot smoother.”

And yet he remains unfulfilled.

Because all over America, there are John Dorans trying to convince their states to allow surge brakes. According to statistics compiled by Dick Klein, the NATM's consulting engineer, only nine states allow them: Colorado, Connecticut, Georgia, Iowa, Maryland, Minnesota, Pennsylvania, South Carolina, and Texas.

And in Washington, DC, there are people like John McClelland who are trying to convince the Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) to reverse the guidelines it issued in 1975, 1993, and 1997 that explain why surge brakes do not comply with Federal Motor Carrier Safety Regulations — a “legalistic interpretation,” McClelland says, that has caused chaos.

“It didn't affect interstate personal transportation, nor did it affect any transportation, personal or commercial, within a state's borders,” he says. “There was no direction to states whether they should do something or not. We've ended up with a number of states taking the federal rule and harmonizing it with their own.”

Confusing landscape

McClelland, vice president of government affairs for the American Rental Association (ARA), is a registered lobbyist based in the nation's capital. He's also been active in the Surge Brake Coalition, which includes the ARA, NATM, Association of Equipment Manufacturers, National Marine Manufacturers Association, and various surge-brake manufacturers, end users, and trailer manufacturers.

He surveys an illogical, confounding landscape and just shakes his head.

“Even in states that have legalized surge brakes, that doesn't help the people who live on state lines and may have trailers moving across state lines,” he says. “Someone still has a problem with the federal government if he manufactures a surge-brake trailer and transports that to a customer using a commercial vehicle. It's one of those things where you may be legal in the state you're in, but the act of crossing state lines with a commercial vehicle and surge-brake trailer would be a violation of federal law.

“He's towing it behind a commercial vehicle in Maryland. It's perfectly legal to do that. He's towing it behind a commercial vehicle in Pennsylvania. It's perfectly legal to do that. But the fact that he's crossing the state line using a commercial vehicle to tow the trailer means he's in violation of federal statute. He could be cited by the federal DOT's enforcement if he crosses the state line. Now you tell me if that makes any sense. There are crazy situations that could occur as a result of the interpretation that occurred in '93.”

McClelland says that in the early 1990s, someone asked the federal DOT for another interpretation on surge brakes. The Federal Highway Administration, the predecessor to the FMCSA, determined that surge brakes did not comply and were therefore illegal in interstate commerce.

The new guidance was published on November 17, 1993, in the Code of Federal Regulations: “393.48 requires that brakes be operable at all times. Generally, surge brakes are only operative when the vehicle is moving in the forward direction and as such do not comply with 393.48.”

According to 393.49, a single valve is to operate all brakes: “Every motor vehicle, the date of manufacture of which is subsequent to June 30, 1953, which is equipped with power brakes, shall have the braking system so arranged that one application valve shall when applied operate all the service brakes on the motor vehicle or combination of motor vehicles. This requirement shall not be construed to prohibit motor vehicles from being equipped with an additional valve to be used to operate the brakes on a trailer or trailers or as provided in 393.44. This section shall not be applicable to driveaway-towaway operations unless the brakes on such operations are designed to be operated by a single valve.”

Says Doran, “When the FMCSA regulations talk about brakes, they're really written for air brakes on tractor-trailers. So there's no way that surge brakes or electric brakes on small trailers could comply.”

Surge brakes are typically used on trailers with less than 12,000-lb GVWR. They utilize the push of the trailer against the braking towing vehicle to actuate the trailer brakes. Hydraulically activated by a master cylinder at the junction of the hitch and trailer tongue, they are automatically applied when the towing vehicle slows.

“The big problem in the trailer industry is that the federal government frowned upon surge brakes, and that left one choice — electric,” Doran says. “And electric brakes are OK. They work. But they will not operate unless you have a special aftermarket brake controller permanently installed in the truck cab. So if a company that rents trailers has a customer who doesn't have an aftermarket brake controller, he can't rent the trailer. Or, worse yet, if he does rent the trailer and the customer doesn't have a brake controller, the trailer goes out on rent with no brakes operating.

Doran says “the beauty” of surge-brake trailers is that they have 100% of the brake system on the trailer itself — as opposed to electric-brake trailers, which have a controller in the truck and the brake on the trailer.

That's why in the trailer rental business, virtually 100% of the trailers have surge brakes.

As a trailer manufacturer, Doran produces an equal amount of trailers with surge brakes and electric brakes. The surge-brake ban didn't matter to his company because it can just as easily build trailers with electric brakes. But he had spent 30 years in the construction equipment rental business, and he felt Maryland was making a mistake by “forcing a customer to use a trailer that was less safe.

“A surge-brake trailer is safer because it's self-contained — 100% of the brake system is on the trailer,” he says. “So worst-case scenario: Let's say a guy comes in and gets a trailer and doesn't plug the lights in or doesn't have the right connections for the lights. At least when he's going down the road, he has surge brakes working. If you have ever followed somebody with an electric-brake trailer and the lights aren't working, you can pretty much guarantee that their brakes are not working either, because they have to go through the same plug.

“That was our point to the state: ‘You're almost forcing people to do that.’ In my opinion, Maryland was quick to ban surge brakes but never looked at what the repercussions would be.”

Ticketing madness

Doran says that in 2000, he and many others noticed a dramatic surge in the number of tickets issued for surge-brake violations in Maryland. (Says the FMCSA's Jim Lewis, “Enforcement by state and local authorities increased shortly after the 1997 republication of the surge brake guidelines.”)

“You wouldn't believe how many people in Maryland were driving along, fat, dumb, and happy, and they got pulled over, were given a $520 ticket and points on their license, and had to have their trailer towed,” he says. “Boy, they were irate.”

That's when he got together and formed a state coalition of businesses and set out to convince Maryland to allow surge brakes. He learned that Georgia had passed a law allowing surge brakes, so he contacted the ARA and was given the name of the man who spearheaded that effort. Doran contacted him and was given a game plan for dealing with legislators, state police, and the state's DOT.

He says he met with initial resistance because of the state's concern that it might jeopardize federal funding if it went against the FMCSA's ruling.

“States are walking on eggshells about losing federal funding from DOT if they're perceived to be cowboys going out on a limb,” he says. “The other thing is, there was bureaucracy, and we had to find out the right people who made the decisions.”

In 2002, the surge-brake proposal passed through both the House and Senate, but the governor vetoed it. Doran's group had to start all over again the following year. Dealing with a largely new group of legislators, his group didn't even get past the first committee.

“It's a technical issue,” he says, “and it's hard to get people to understand. They don't know much about trailers at all. You have to explain it in such a way that it's easy for a non-mechanical person to understand it.”

Finally, in May, Doran saw the fruit of his labor when Gov Ehrlich signed the bill.

“Believe it or not, I think it's a relief for the government to have something in the power of the written word,” he says. “One of the big problems we had was since Maryland didn't have any legislation that specifically banned surge brakes, there was a lot of interpreting being done. And it was being done literally on the side of the road by a state trooper or an officer of the DOT. It was absolute chaos when it came to enforcement.

“So there is a sense of relief. Maryland didn't lose any federal funding, and there's no difference between surge brakes on a boat trailer or a private-use trailer and a commercial trailer. Let's face it: Brakes are brakes. They either work or they don't. They don't care what you're doing with the trailer. They're just brakes. And now there is one clear guideline.”

National scene

Meanwhile, the Surge Brake Coalition was working on the national level.

It submitted a petition to the FMCSA on February 28, 2002, asking for a review of the 1993 ruling and making a case that the wording should be changed on 393.48 to allow surge brakes for use on certain sizes of trailers and towing-vehicle combinations.

The Coalition asked the FMCSA to amend 393.48 to read that “all brakes with which a motor vehicle is equipped must work at all times and be capable of operating.” The petition argues that the performance of a truck-trailer unit's brakes when traveling in reverse is irrelevant because it is not applicable under DOT standards for determining adequacy of brake-safety performance. The petition also states that because the 1950s rule predates ABS and surge brakes, it doesn't recognize the obsolescence of the notion that single-valve control is necessary for brake safety.

The Coalition also asked that 393.48 be amended to read that it “does not apply to any trailer with GVWR of 12,000 lb or less equipped with inertial surge brakes when its GVW does not exceed 1.75 times the GVW of its towing vehicle, or any vehicle with a GVW of more than 12,000 lb but less than 20,001 lb equipped with inertial surge brakes when the GVW does not exceed 1.25 times the GVW of the towing vehicle.”

McClelland says that Congress, in an appropriations bill passed January 23, instructed the FMCSA to make a decision on the petition within 90 days. He says the FMCSA has not met that request and has not responded to the Coalition's petition.

“I have reason to believe they have been giving it consideration,” McClelland says.

The FMCSA's Lewis will say only that a decision will be announced “soon.”

Says NATM's Klein, “We're kind of laying low and seeing what happens. We're kind of holding our breath. A lot of NATM members that build trailers build them with surge brakes and sell them to the rental market or to construction companies — especially construction companies, because they use them in commercial vehicles when they haul materials on flatbeds. So it would really be good for the members to have surge brakes allowed.”

McClelland says the FMCSA may be investigating whether there is any adverse safety data associated with surge brakes. He says he knows of none. The Coalition in 2001 retained an independent testing firm, Exponent Failure Analysis Associates, which conducted tests that indicated surge brakes meet federal criteria for trailer braking systems within limited weight applications.

McClelland believes the FMCSA's guidance actually has negatively impacted safety in a way surge brakes never could.

“I'm not a lawyer, but when you look at the consequences of the regulatory situation that has been essentially imposed through a legalistic interpretation of these rules 10-plus years ago, I think you will find a number of quite unintended consequences. We certainly would make the case that opposed to enhancing safety, this interpretation can be shown to detract from safety.

“If you don't have a good reason for doing it, then you shouldn't be doing it. Now, what's the good reason for doing it? Because it's a legalistic interpretation of a rule that was written 40 years ago. That is a tough thing. That doesn't hold up well.”

So they wait.

And the waiting may be the hardest part.

The nine states that have approved the use of surge brakes, with the specific requirements of the trailer on which they are used:

Colorado — Under 10,000 lb

Connecticut — Under 8000 lb

Georgia — Under 12,000 lb

Iowa — Must be designed as to be applied by the driver of the towing vehicle from cab or with self-actuating brakes (e.g., surge brakes)